High court hears arguments for Vince Foster photos

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Freedom of Information Act requester Allan Favish argued his own case before the U.S. Supreme Court in search of photos taken during the government’s investigation of the 1993 death of White House Counsel Vincent Foster.

Dec. 4, 2003 — California attorney Allan Favish told the U.S. Supreme Court yesterday that the government should release Polaroid pictures of former White House Counsel Vince Foster, taken after his death by gunshot wound in 1993. The public has a strong interest in seeing, and assessing for itself, the evidence government investigators say showed Foster’s death to be a suicide, Favish told the Court.

On the other side, Deputy Attorney General Patricia Millett said the government, which invoked the law enforcement privacy exemption to the Freedom of Information Act, needs to protect the “privacy” of survivors from the release of “ghoulish” details of the death of their loved ones. Foster was found dead in Fort Marcy Park in northern Virginia.

James Hamilton, an attorney for Foster’s wife and sister, also argued. He said considerable pain and grief already suffered by the Foster family would be exacerbated by release of more information, in part because it would provoke more media interest.

The Reporters Committee for Freedom of the Press filed an amicus brief supporting Favish in the case. It was joined by numerous other press groups.

The Court primarily explored whether the privacy exemption protects survivor interests. Justice Antonin Scalia suggested that the protection sought for the Foster family was protection of “sensibilities,” not “privacy.”

Chief Justice William Rehnquist asked if survivors must be identified before the government will protect their privacy. Millett said the general policy is to identify survivors before invoking the exemption.

Justice Sandra Day O’Connor asked the government what standard should govern use of the privacy exemption. Millett said that once a privacy interest is established, it must be weighed against the public’s interest in disclosure. If there is a privacy interest, she said, the requester must show “clear evidence” of government wrongdoing in order to get the records.

“What do you mean by wrongdoing?” Scalia asked, adding that the public might have an interest in negligence or sloppiness during a government investigation.

“There was no evidence of sloppiness here,” Millett replied.

Justice David Souter asked why misconduct had to be considered in assessing the public interest. What if a requester only wanted to make the government look good, he asked. Once an exemption is identified, Millett said, the government needs to show more than the public’s interest in transparency before releasing records.

In his argument, Favish quoted to the Court its own definition of privacy in an earlier FOI Act case: “The right to control information about yourself.” Favish asserted that the privacy exemption applies solely to an individual, and not one’s family.

But Souter suggested the definition of privacy is the “right to be let alone,” including, perhaps, the family’s right to not view the photos, or their right not to be assaulted by more questions from the media.

In reply, Favish said even if the court accepts that the exemption protects “survivor privacy,” the strong public interest would outweigh the privacy interest. The public has an interest in the conduct of the investigation, the conduct of reporting on it, and in several discrepancies he outlined.

Breyer said that hundreds of thousands of people are investigated each year, and many of them are found innocent. Under Favish’s reasoning, Breyer said, police reports about them could run on the front page of their local newspapers.

But in this case, Favish said, the highest levels of government were under investigation. Therefore, he said, he can think of “no higher” public interest.

The Court does not indicate when it will decide cases during the term, but will do so before the end of the term in June 2004.

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